Tutay Magdalena Diego v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3288/2019

[2025] HKCFI 3347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3288 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K. W. Lung:

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. She appeared before the Court on 9 July 2025.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Philippines and last arrived in Hong Kong on 7 September 2017 as a domestic helper, but when her employment contract concluded, she did not depart but instead overstayed since 13 February 2018. She surrendered to the Immigration Department on 20 February 2018 and in due course, the applicant lodged her non-refoulement claim.

5.The applicant’s claim is based on her fear of being harmed or killed by her creditor.

6.According to the applicant, in or around September 2014, she made a loan of about 2 million Pesos.  While for the first 3 months, she managed to pay interest on the loan to the creditor, on about 17 November 2014, a fire broke out and all the inventory was burnt, suffering a total loss.  The applicant could not repay and on about 27 November 2014, the creditor sent people and threatened the applicant.  The applicant also received a phone call on about 2 December 2014 that her brother was kidnapped by the creditor and his people.  The applicant confirmed that the creditor did not physically harm her.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 8 October 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection will be available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

9.The applicant appealed against the Director’s Decision.  On 8 March 2019, the Board conducted an oral hearing for her appeal, during which the Board questioned the applicant on various issues of her claim [46-61].

10.Having considered the evidence, the Board found that the applicant’s evidence was inconsistent, unreliable and implausible, and was not willing to attach any credence to significant segments of it [61].  In any event, having considered the Country of Origin information [75-79], state protection and was available [80] and internal relationship would not be unduly harsh [81-84].  In conclusion, the Board held the applicant’s claim failed under all applicable grounds.  It therefore dismissed her appeal and confirmed the Director’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003288_2019_files/the_Board's_Decision.pdf.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 4 November 2019 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has not raised any specific ground to challenge the Board’s Decision in her affidavit in support of her application.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the appellant agreed the Board’s Decision is not wrong. 

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The applicant has raised no valid ground to challenge the Board’s Decision.

17.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 10^th day of September 2025

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1